Hardcore libertarians: explain your anti-IP-rights position to me.

[em3rgentOrdr]

Rights are not obtained by contract. Agreements are.

I don't understand this distinction. What is the difference between an agreement and the right to enforce an agreement?

Agreements are created (made).

You cannot create rights.

Really? So who gave us our rights and where did they come from?

We give rights to ourselves by agreeing to abide by them.

I tend to avoid the whole concepts of "rights" all together.  There are only humans, and there are agreements between humans.  Simple.

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[myrkul]

Sorry, I still can't understand what you're trying to say. Say my wife and I have a daughter. She now has certain rights. Didn't my wife and I, by creating our daughter, also create those rights?

Rights arise as a consequence of particular states of affairs. By creating those states of affairs, we create the rights that arise from them as a consequence.

And agreements do create rights. If you buy a car from me, you now have the right to that car, a right you didn't previously have. The agreement created the right. I suppose you can argue that you always had the right to all possessions you justly acquired and that the right to the car is merely a consequence of a pre-existing right, but that weaker version of the difference between rights and agreements is too weak to make your point. (For example, you can certainly enforce that agreement against a third party who destroys the car that is only yours because of the agreement.)

Every valid agreement creates a new right on the part of all the parties of that agreement -- the right to enforce the agreement.

You've created a new human being, which by virtue of being a human being, has certain rights. We're already straying rather far afield from the basic information that the OP wanted, but since that's been covered, I'm OK with that. I'm in favor of the concept of Negative rights, in which the Right to life, for instance, is defined as: the right NOT to be killed. The right to property is the right NOT to be stolen from.

If You and I make an agreement to transfer ownership of a vehicle, the vehicle becomes my property, and is no longer yours. You haven't lost any rights, nor have I gained them. If you, or a third party then tries to drive off with my car, then you or they are violating my right NOT to be stolen from, and most certainly I can enforce that.

[Mr2001]

I'm not a hardcore libertarian, but I am a fervent opponent of IP law. Others have already covered the philosophical argument that IP infringes on property rights; personally, with regard to copyright, I'm more disturbed by the infringement on free speech. But let me focus on the OP's practical argument for now.

Suppose I am a master chef in a small village. My food preparation method is healthier and tastier than other alternatives. There is no way to reverse-engineer my food preparation method from the food I serve. I want to write a cookbook. It will take me 500 hours to write this cookbook, in which time I could just make more food to earn me some money. My secret recipes are so good that it is clear that society as a whole will be far better off if more chefs could utilize my techniques than if I spent the 500 hours cooking better meals for a small number of people. You would agree that it is better if this method was known to more people.

What incentive do I have to write this cookbook? If I try to publish even a single copy, any established book publisher with more efficient book-printing resources than I do will be able to prevent me from earning any money while earning a hefty profit themselves. The only possible solution I can think of is the idea of selling my final draft of the cookbook to a publisher - that is, selling the right to be the first person (besides myself) to see what I have written so that they can publish it.

You've overlooked a very simple solution.

As you stated, writing the cookbook would provide a clear benefit to society. Gourmands would benefit from having healthy, tasty meals available more readily. Chefs would benefit from being able to cook better meals that customers would pay more for. Farmers, foodservice suppliers, and everyone else who profits from the restaurant industry would benefit from the growth of that industry.

So, here's the realization you're missing: those benefits make the act of writing the cookbook valuable in itself. Everyone who would benefit from the existence of that cookbook has an economic incentive to pay you to write it. That payment is a investment in their future profits (or their enjoyment of tasty meals).

If you're only able to think of the cookbook as a product -- something you have to invest your time into making, then recoup that investment later by selling copies -- then you won't be able to see past the copyright-based business model. But if you can let go of the concept of cookbook-as-product, and focus on the labor that goes into writing it, the solution will be obvious.

People will tangibly benefit from reading your cookbook. They can't read it until you write it. It won't be written until you willingly provide your labor. You can withhold that labor until someone (or a group of people pooling their money) agrees to pay you a price you consider fair. Therefore, you can be pretty damn sure that people will pay you to write it: at most, you'll just need to find a middleman to collect payments and hold them in escrow, not too different from what's already done on political campaign sites, Kickstarter, Sellaband, etc.

And once that's done and you publish the book, you can stop worrying about who copies it, since you've finished the job and been paid for it.

[myrkul]

And once that's done and you publish the book, you can stop worrying about who copies it, since you've finished the job and been paid for it.

+1.

[JoelKatz]

If You and I make an agreement to transfer ownership of a vehicle, the vehicle becomes my property, and is no longer yours. You haven't lost any rights, nor have I gained them. If you, or a third party then tries to drive off with my car, then you or they are violating my right NOT to be stolen from, and most certainly I can enforce that.

Why aren't they violating my right not to be stolen from? Why does your right not to be stolen from extend to cover the car? And the answer is that the right extends to cover the car because of the contract.

Call it extensions, call it whatever you want. But the fact is, contracts create rights, or extend them, or make actions violations of rights that wouldn't otherwise be. Whatever. The terminology is not important. The point is, rights obtains contractually are real rights and in fact most rights are obtained in this way. If your boss doesn't pay you for your labor, he's violating your rights because he agreed to pay you.

When you buy a CD in the United States, you are entering into an implicit contract with the seller of the CD. This contract incorporates the laws of the United States to set the defaults. You are, of course, free to negotiate other terms, but the law will have to set the default in every society. Otherwise, there is no way courts could enforce contracts.

[myrkul]

When you buy a CD in the United States, you are entering into an implicit contract with the seller of the CD. This contract incorporates the laws of the United States to set the defaults. You are, of course, free to negotiate other terms, but the law will have to set the default in every society. Otherwise, there is no way courts could enforce contracts.

Implicit contracts are not valid. this is the core of libertarian philosophy, and why, if they're self-honest, libertarians are against IP.

[Mr2001]

When you buy a CD in the United States, you are entering into an implicit contract with the seller of the CD. This contract incorporates the laws of the United States to set the defaults. You are, of course, free to negotiate other terms, but the law will have to set the default in every society. Otherwise, there is no way courts could enforce contracts.

Laws are not the same as contractual terms. When I buy something at the store, the only terms I'm agreeing to are the exchange of ownership (implied by tradition as part of the act of sale) and whatever terms are explicitly laid out at the point of sale (return policy, etc.). When I buy a CD, I'm trading my money for the store's plastic disc, but I'm not agreeing to any restrictions on what I do with that disc once I get it home.

Those restrictions are part of the law, not the sales contract. If I violate them, it won't be the seller (the store) who comes after me, it'll be a third party (the copyright holder, or law enforcement) who had no part in the sale and is not acting on behalf of the seller; and I won't have violated any agreement, I will only have violated the wishes of third parties I've never met and politicians who don't represent my interests.

[billyjoeallen]

How are you going to enforce your ownership of IP without tax-funded government? If taxes are theft (they are), then you are violating others property rights to enforce your own.

You don't have the right to the fruits of my labor to enforce your ownership claims, no matter how valid those claims may be.

[JoelKatz]

Implicit contracts are not valid. this is the core of libertarian philosophy, and why, if they're self-honest, libertarians are against IP.

So if I walk into a candy store, put a candy bar and a dollar on the counter, what happens? Can the candy store owner just take my dollar and not give me the candy bar? How do I know the candy bar is mine after I've paid?

I have met dozens of Libertarians and I've never met a single one who believed that implied contracts were invalid where the terms were not unconscionable, known to both parties, and one party gave the consideration to the other that was understood by both to signify acceptance of the contract.

[JoelKatz]

Laws are not the same as contractual terms. When I buy something at the store, the only terms I'm agreeing to are the exchange of ownership (implied by tradition as part of the act of sale) and whatever terms are explicitly laid out at the point of sale (return policy, etc.). When I buy a CD, I'm trading my money for the store's plastic disc, but I'm not agreeing to any restrictions on what I do with that disc once I get it home.

That's just because we're not a Libertarian society. But in a Libertarian society, that's exactly how IP would work. It would be in the form of contracts, either explicit or implied.

In a Libertarian society, assuming courts are operated by the government, the government will have to set default contractual terms because otherwise it could not enforce contracts. Whatever those defaults are, people are always free to change them. Likely, if the default included no IP or IP that most sellers didn't find satisfactory, restrictions on what you could do with the CD once you got home would be included in the sale contract.

Those restrictions are part of the law, not the sales contract. If I violate them, it won't be the seller (the store) who comes after me, it'll be a third party (the copyright holder, or law enforcement) who had no part in the sale and is not acting on behalf of the seller; and I won't have violated any agreement, I will only have violated the wishes of third parties I've never met and politicians who don't represent my interests.

Right, because we don't have Libertarian IP in this country. If we did, you would likely have to enter into a contract with the rights holder to buy a CD. This could easily be made efficient and streamlined and there would be a large incentive to do so. As I said, you'd probably have to show some kind of ID card that indicated you had entered into a contract with the distributor of the movie in order to enter a movie theater. It wouldn't be hard to make this efficient.

Note that the terms could be much worse than the ones in the United States. With IP terms set by law, the terms are a balance between creators and consumers and include things like fair use. With IP terms set by contract, the terms are much more in the control of the creators and likely would include much more restricted fair use rights. This is why Microsoft uses EULAs.

[myrkul]

Implicit contracts are not valid. this is the core of libertarian philosophy, and why, if they're self-honest, libertarians are against IP.

So if I walk into a candy store, put a candy bar and a dollar on the counter, what happens? Can the candy store owner just take my dollar and not give me the candy bar? How do I know the candy bar is mine after I've paid?

I have met dozens of Libertarians and I've never met a single one who believed that implied contracts were invalid where the terms were not unconscionable, known to both parties, and one party gave the consideration to the other that was understood by both to signify acceptance of the contract.

I never said verbal agreements were not valid. Or even the short-hand agreements that take the form of pricetag. You see the price tag and you know, that if you give the clerk that specified amount of money, you can leave the store with the item. That is an explicit, if abbreviated, agreement between you and the store.

[JoelKatz]

I never said verbal agreements were not valid. Or even the short-hand agreements that take the form of pricetag. You see the price tag and you know, that if you give the clerk that specified amount of money, you can leave the store with the item. That is an explicit, if abbreviated, agreement between you and the store.

There is one and only one difference between an implied contract and an explicit contract. With an explicit contract, the terms are explicitly agreed to. With an implicit contract, the contract is offered by one side and the agreement is implied from the other side's performance of what the implicit contract requires.

For example: "How much is a candy bar?" "$1" "Okay" - explicit
"How much is a candy bar?" "$1" [hands $1 across the counter] - implicit

That really is the only difference. In both cases, some of the terms of the contract are implied by law and understood by both sides. (For example, what happens if my dollar is counterfeit? What happens if the candy bar is defective in some way? All of these terms are implicitly part of even an explicit contract.)

There really is almost no difference. Most real-world agreements have both explicit and implicit terms. The only real difference is that it's sometimes harder to prove that an implicit contract exists or to establish that it had particular terms. But so long as there was a mutual understanding, whether explicit or implicit, the terms should be enforceable. (With the obvious exceptions for things like verbal agreements to transfer ownership in land, unconscionable terms, agreements obtained by coercion, and so on.)

[myrkul]

(With the obvious exceptions for things like verbal agreements to transfer ownership in land, unconscionable terms, agreements obtained by coercion, and so on.)

...and we're back to 'you don't own what's in my brain'

[Mr2001]

Right, because we don't have Libertarian IP in this country. If we did, you would likely have to enter into a contract with the rights holder to buy a CD. This could easily be made efficient and streamlined and there would be a large incentive to do so. As I said, you'd probably have to show some kind of ID card that indicated you had entered into a contract with the distributor of the movie in order to enter a movie theater. It wouldn't be hard to make this efficient.

That would be fantastic. I don't think people in general would stand for all these restrictions on their speech and property rights if they had to explicitly agree to them each time they bought something.

For instance, buying decongestants at the drug store is such a hassle (thanks to anti-meth laws) that I find myself discouraged from doing it, even though all I have to do is go to the counter, sign a form, and show my ID. I could foresee a lot of customers choosing not to buy CDs and movie tickets if buying them meant voluntarily agreeing to pay thousands of dollars in fines and/or serve jail time if they used their knowledge of that music/film in the wrong way thereafter.

Note that the terms could be much worse than the ones in the United States. With IP terms set by law, the terms are a balance between creators and consumers and include things like fair use. With IP terms set by contract, the terms are much more in the control of the creators and likely would include much more restricted fair use rights. This is why Microsoft uses EULAs.

Considering the difference in political clout between creators and consumers, I don't think there'd be much difference. There's basically no one looking out for the interests of consumers or defending fair use anymore. The "limited time" of a copyright term has gotten longer and longer, and been extended retroactively with no reason not to expect future extensions, such that it may as well be unlimited. The perceived purpose of copyright has shifted in many eyes, from giving authors an economic incentive for future work, to instead giving them their morally deserved rewards for past work. Fair use as we know it today is good for critics and parodists but has almost no value to consumers.

[JoelKatz]

(With the obvious exceptions for things like verbal agreements to transfer ownership in land, unconscionable terms, agreements obtained by coercion, and so on.)

...and we're back to 'you don't own what's in my brain'

Are you arguing that copyright and patent terms are not just unfair or unreasonable but *unconscionable*? Are you saying I should not be permitted to sell you a CD on the condition that you do not copy it?

It is a fundamental Libertarian notion that the government should never prevent two consenting people from making a mutually-beneficial agreement without an extremely powerful justification for doing so. I don't see an extremely powerful justification for prohibiting agreements of this kind.

[JoelKatz]

That would be fantastic. I don't think people in general would stand for all these restrictions on their speech and property rights if they had to explicitly agree to them each time they bought something.

It depends how different you imagine society being. If all we did was get rid of the IP laws but otherwise left things the same, people would agree to them without even reading them much like they do today with click-through EULAs.

For instance, buying decongestants at the drug store is such a hassle (thanks to anti-meth laws) that I find myself discouraged from doing it, even though all I have to do is go to the counter, sign a form, and show my ID. I could foresee a lot of customers choosing not to buy CDs and movie tickets if buying them meant voluntarily agreeing to pay thousands of dollars in fines and/or serve jail time if they used their knowledge of that music/film in the wrong way thereafter.

It's only such a hassle because the government requires it to be a hassle. If there were huge commercial incentives to make it as easy as possible and no laws requiring it to be difficult, it could be made trivially easy to do. (Like having a library card. If you had to do it to go to a movie, you would.)

Note that the terms could be much worse than the ones in the United States. With IP terms set by law, the terms are a balance between creators and consumers and include things like fair use. With IP terms set by contract, the terms are much more in the control of the creators and likely would include much more restricted fair use rights. This is why Microsoft uses EULAs.

Considering the difference in political clout between creators and consumers, I don't think there'd be much difference. There's basically no one looking out for the interests of consumers or defending fair use anymore. The "limited time" of a copyright term has gotten longer and longer, and been extended retroactively with no reason not to expect future extensions, such that it may as well be unlimited. The perceived purpose of copyright has shifted in many eyes, from giving authors an economic incentive for future work, to instead giving them their morally deserved rewards for past work. Fair use as we know it today is good for critics and parodists but has almost no value to consumers.

I largely agree with everything you say about how IP laws actually operate. Libertarians should be reasonably convinced that market-based IP agreements arranged by contracts will work out better.

Really the only live issue, other than Libertarians who don't understand the consequences of their own positions, is enforceability against third parties. As I've argued, Libertarianism doesn't work if third parties are free to ignore the consequences of other people's contracts. (The only reason I can't steal your TV from you is because I am not free to ignore the right to that TV that you acquired from that contract. If I was free to ignore that contract on the grounds that I wasn't a party to it, you would have no recourse against me when I stole your TV. I would not be required to accept that it was yours.)

[Mr2001]

Are you arguing that copyright and patent terms are not just unfair or unreasonable but *unconscionable*? Are you saying I should not be permitted to sell you a CD on the condition that you do not copy it?

It is a fundamental Libertarian notion that the government should never prevent two consenting people from making a mutually-beneficial agreement without an extremely powerful justification for doing so. I don't see an extremely powerful justification for prohibiting agreements of this kind.

I agree that it's hard to justify that prohibition from a libertarian standpoint, but as a non-hardcore-libertarian I see no problem doing so. I don't mind saying that you can't sell yourself into slavery, for example. And although I've got no beef with NDAs that protect actual secrets, I wouldn't mind banning contracts that require one party to avoid sharing information that's already been made available to the public, which is what a contract that implemented copyright would be doing. To sign away the right to discuss your own culture is to give up your own humanity, and I'd be delighted to see my tax dollars going to fight those who would pressure their customers into doing such a thing.

[Mr2001]

As I've argued, Libertarianism doesn't work if third parties are free to ignore the consequences of other people's contracts. (The only reason I can't steal your TV from you is because I am not free to ignore the right to that TV that you acquired from that contract. If I was free to ignore that contract on the grounds that I wasn't a party to it, you would have no recourse against me when I stole your TV. I would not be required to accept that it was yours.)

That's only true if you refuse to separate the concept of ownership from the contract that assigns it. As I see it, it's none of my concern how you came to own that TV -- what matters is that you own it now. The TV is not a bitcoin that needs to prove its lineage to everyone who comes across it, and the sales contract is not a passport that you need to carry around to prove you own the TV. A third party can't ignore the contract and pretend you don't own the TV any more than he can ignore a contract with your barber and pretend your hair hasn't been cut.

[myrkul]

Are you arguing that copyright and patent terms are not just unfair or unreasonable but *unconscionable*? Are you saying I should not be permitted to sell you a CD on the condition that you do not copy it?

It is a fundamental Libertarian notion that the government should never prevent two consenting people from making a mutually-beneficial agreement without an extremely powerful justification for doing so. I don't see an extremely powerful justification for prohibiting agreements of this kind.

The unconscionable nature of Intellectual Property is the basis of my argument against it. I also despise abortion, but I support a woman's right to have one.

The unenforceability of a contract upon a third person is the basis of my argument against IP law. (well, that and my problem with laws in general)

[dannickherpderp]

I like to look at the intellectual property argument from something of a utilitarian standpoint.  Imagine there is a machine I build and it does a wonderful thing, say it cures cancer, or makes cake.  If my machine is truly an improvement over other options on the market I will be able to charge a large profit for it, and eventually copycats will come out and the price will be forced down.  if we are at a point where everyone can rip off everyone else for these sorts of machines if they weren't patented then I would argue the envelope is not being pushed hard enough.  I can't patent making ice or yarn or beer now because everyone can do it.  If your cooking methods are really that revolutionary, then no you have no reason to publish them but you would be foolish in thinking that they would never be reproduced in any real society.  The innovation-knockoff cycle continues in a given industry until human intellect is strained.  "Let's see them try to make THIS!" would be the shouts from remarkably high-paid engineers and scientists as they compete for capital.

Think about it.  What would happen if Lycos had somehow claimed intellectual property on all search engines?